STATE OF IOWA, Plaintiff - Appellee, vs. MICHAEL DAVID PAPESH, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-159 / 08-1077
Filed March 26, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL DAVID PAPESH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
Michael David Papesh appeals following conviction and sentence for
possession of more than five grams of methamphetamine with intent to deliver,
possession of ephedrine with intent to manufacture, possession of lithium with
intent to manufacture, possession of anhydrous ammonia with intent to
manufacture, and failure to possess a tax stamp. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad Walz and James
Katcher, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Miller and Potterfield, JJ.
2
MAHAN, P.J.
Michael David Papesh appeals following conviction and sentence for
possession of more than five grams of methamphetamine with intent to deliver in
violation of Iowa Code section 124.401(1)(b) (2005), possession of ephedrine
with intent to manufacture in violation of section 124.401(4), possession of lithium
with intent to manufacture in violation of section 124.401(4), possession of
anhydrous ammonia with intent to manufacture in violation of section 124.401(4),
and failure to possess a tax stamp in violation of section 453B.12. He contends
the district court erred in ruling that section 901.10 did not authorize up to a onethird reduction to the one-third mandatory minimum on his sentence. We affirm.
I. Background Facts and Proceedings.
On July 31, 2006, Papesh was charged with possession of more than five
grams of methamphetamine with intent to deliver, possession of ephedrine with
intent to manufacture, possession of lithium with intent to manufacture,
possession of anhydrous ammonia with intent to manufacture, and failure to
possess a tax stamp. Papesh filed a motion to suppress, which the district court
granted. Thereafter, the State filed an application for discretionary review, which
the court granted.
Meanwhile, while that matter was on appeal, Papesh was again charged
and convicted of possession of more than five grams of methamphetamine with
intent to deliver, for an offense that took place on April 6, 2007. Judgment was
filed on June 16, 2007, and Papesh was sentenced to twenty-five years with a
mandatory one-third minimum.
The district court reduced the mandatory
3
minimum by one-third under Iowa Code section 901.10(1) and 901.10(2) as a
result of Papesh’s guilty plea.
On January 30, 2008, the present case (involving Papesh’s 2006
offenses) was reversed and remanded. Papesh entered a plea of guilty to the
charges and was sentenced on June 6, 2008. For the possession of more than
five grams of methamphetamine with intent to deliver offense, Papesh was
sentenced to an indeterminate term of twenty-five years, with a mandatory onethird minimum. He was sentenced to five years each for the remaining four
counts. All counts were to be run concurrently with each other, but consecutively
with his sentence for the 2007 offense. Papesh now appeals.
II. Scope and Standard of Review.
We review the district court’s interpretation of a statute for corrections of
errors at law. Iowa R. App. P. 6.4; State v. Jorgensen, 758 N.W.2d 830, 834
(Iowa 2008).
III. Merits.
Papesh argues the district court erred in ruling Iowa Code section 901.10
did not authorize a one-third reduction to the one-third mandatory minimum on
his sentence.
He contends the court should have reduced the one-third
mandatory minimum by one-third on his offense of possession of more than five
grams of methamphetamine with intent to deliver in this case. Specifically, he
claims that the court erred in concluding his 2008 conviction for the 2006
offenses was not a first conviction, but rather, it was a second conviction
subsequent to the 2007 offense and conviction that occurred while this case was
on appeal. Section 901.10 provides:
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1. A court sentencing a person for the person’s first
conviction under section . . . 124.413 . . . may, at its discretion,
sentence the person to a term less than provided by the statute if
mitigating circumstances exist and those circumstances are
specifically stated on the record.
2. Notwithstanding subsection 1, if the sentence under
section 124.413 involves an amphetamine or methamphetamine
offense under section 124.401, subsection 1, paragraph “a” or “b”,
the court shall not grant any reduction of sentence unless the
defendant pleads guilty. If the defendant pleads guilty, the court
may, at its discretion, reduce the mandatory minimum sentence by
up to one-third.
Papesh was convicted under section 124.401(b).
Section 124.413
requires defendants convicted under section 124.401 to serve a one-third
mandatory minimum of the maximum indeterminate sentence for the conviction
under that section. Papesh was sentenced to twenty-five years with a mandatory
one-third minimum. The court, however, did not exercise its discretion to reduce
the mandatory minimum by one-third, because at the 2008 sentencing for the
offenses that occurred in 2006 Papesh had already been sentenced for the
offenses that took place in 2007. We note that with regard to the 2007 offenses,
the court did exercise its discretion to reduce the mandatory minimum by onethird.1
The crux of Papesh’s argument relies on a comparison of sections 901.10
and 902.8. Section 902.8 is Iowa’s habitual offender statute, which is designed
to “punish violators who have not responded to the restraining influence of
conviction and punishment.” State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000).
1
Papesh is essentially arguing that he should receive reductions on two separate
convictions under section 901.10, which only applies to “the person’s first conviction.”
Iowa Code § 901.10(1) (emphasis added).
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Papesh claims the reduction provisions of section 901.10 should be applied in
the same manner as section 902.8. We disagree.
The language of section 901.10 is clear. The court may use the statute at
its discretion if, on a defendant’s first conviction, “mitigating circumstances exist”
warranting a reduction in punishment. Section 901.10 is not a recidivist statute.
Because the statute only applies to defendants on their first conviction, it is
obvious it is not designed to deter and punish offenders who have not responded
to prior judicial sanctions, as is section 902.8.
In this case, we find that due to the timing of Papesh’s appeal on his 2006
offenses, the district court was correct in considering Papesh’s 2007 offense and
conviction to be his first methamphetamine conviction under section 124.401.
We further find that, upon finding evidence of mitigating circumstances, the
district court was correct in exercising its discretion under section 901.10 to
reduce Papesh’s sentence for the 2007 offense and conviction. Therefore, when
Papesh was sentenced for the 2006 offenses in 2008, it was no longer his first
methamphetamine conviction under section 124.401, and the reduction
provisions under that section no longer applied. Finding no error, we affirm.
AFFIRMED.
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